Revised 8/19/59

AGENDA

for meeting of

CALIFORNIA IAW lU.VISION CO!fiISSIOli

San Francisco August 28-29, 1959

Frida.y, Auguat 28

1. Minutes of July 1959 Meet1gg (sent 8/10/59).

2. Attend·nc"" at National Legislstive Conf'erence. (See MemoraD.dan 110.2, sent 8/19/59.)

3. Schedule for subsequent meetillgs.

4. Approval of pa;yment of consultant, Study 110. 40 - liotice of Alibi (See JlemoraIldum No.5, sent 8/10/59.)

5. Authorization of Publication of study No. 43 - (Separate Trial. Issue Insanity) in C&l.1:t:orni& Law Review (See Memorandum Bo. 7. sent 8/10/59).

6. Argument in faVor of A.C.A. No. 16. (See Memorandan No.1. sent 8/10/59.)

1. Request for authorization of new studies b;y 1960 legislative session. (See Memorandum No.3, sent 8/19/59, Memorandum No. 300A, sent 8/10/59 and Memorandum No. 3-B, sent 8/19/59.)

8. Studies to be suggested to Bidd1ck's Assembly Interilll Judicia:'y

CCllllllittee for possible study. (See Memorandum Bo. 3, sent .. 8/19/59.)

9. History in legislature of measures introduced in 1959 session on

recamnendation of CoaIIIission. (See IleIIIoxandum No.8, sent 8/19/59.)

10. studies heretofore considered:

A. st\Xly No. 32 - Arbitration. (See Memorandum Bo. 9, sent 8/19/59.)

B. St\Xly No. 42 - Trespassing Improvers. (See Memorandan No.2, dated July 8, 1959.)

c. St\Xly No. 48 - R13ht of JUY'enUes to Counsel. (See Memorandum No.6, sent 8/10/59.)

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li. New studies:

A. stu:i;r No. 51 - Al1 l1!QDY After Divorce. (You have this study.)

Saturda;y, August g9

12. study No. 24 - Uniform Rules of Evidence

See:

(1) Memorandum sent 7/9/59 - Lawyer-client privilege (Rule ~).

(2) Memorandum sent 7/9/59 - Physician-patient privilege (Rule ~).

(3) Memorandum sent 7/23/59 - Marital privilege (Rule as) (see also rev18ed pages 7 and 8 and suppl.emlmtal memorandum, sent 8/lO/59).

. (4) Memorandum sent 7/30/59 - Rules g9, 30. 31. 32, 33. 34. 35

and 36.

(5) Memorandum sent 8/10/59 - Rules 37, 38. 39 and 40.

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MINUl'ES OF MEI!ll'ING

of'

August al and 29, 1959

San Francisco

Pursuant to the call of the Chairman, there was a regular

meeting of' the Law RevisiOD Call1liSSiOD on August al and 29, 1959, in

San Francisco.

Present: Mr. Tbomas E. StantOD, Jr., Chairman Mr. John D. Babbage, Vice Chairman Mr. Frank S. Balthis Honorable Clark L. Bradley Honorable James A. Cobey Mr. Leonard J. Dieden Honorable Roy A. GustafSOD Mr. Charles H. Matthews Prof'essor Samuel. D. TburIIIan Mr. Ralph N. Kleps, ex officio (August 26)

Mr. John H. DeMoully and Miss Louisa R. Lindow, members of'

the Commission's Staff', and Mr. Joseph B. Harvey, whose appointment as

a _ber of' the Staff' becomes effective September 2, 1959, were also

present.

Mr. John R. McDonoU(5h, f'ormer Executive Secretary, was present

during a part of' the meeting on August 26, 1959.

A motion was made by Mr. Babbage, seconded by Mr. Dieden,

and lman1mously adopted to approve the minutes of the meeting of July

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Minutes - Regular Meeting August as and 29, 1959

I. ADMINISTRATIVE MATl'ERS

A. Personnel Matters:

(1) Reappointment of Mr. Bradley: The Cba1rman announced

that Assemblyman Clark L. Bradley was reappointed as Assembly Member of

the Commission.

(2) Assistant Elcecutive Secretary: The Elcecutive Secretary

reported that Mr. Joseph B. JJarvey had accepted appointment as Assistant

Executive Secretary of the Commission, effective September 2, 1959-

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Minutes - Regular Meeting August 2B and 29, 1959

B. Current Status of Topics Assigned - Requests for

Authorization of New Studies: The COIIIIIIission bad before it

Memorandum No. 3 (8/J..9/59), Memorandum No. 3-A (8/10/59) and

Memorand1Dll No. 3-B (8/19/59). (A copy of each of these items is

attached hereto.)

The COIIIIIIission first cansidered Memorand1Dll No. 3 -B reJ.ating

to the current status of tcpics assigned to the Ccmn1ss1on for study,

1955-59. After the mtter was discussed it was agreed tbat the

following studies should be 1Irt;roduced at the 1961 LegisJ.ative Session

and sbould receive priority for Ccmn1ssion cansideration as indicated:

Priority

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2

3

4

No.

No.

No.

No.

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32 - Arbitration

36(L) - Condemnation

37(L) - CJ.aims statutes (Claims Against Public Officers and l!bIp1oyees)

34(L) - U.R.E.

5 No. 33 - Survival. of Tort Actians

6 No. 38 - Inter Vivos Risbts - Quasi-Camnunity Property

7 No. 23 - ReSCission of Contracts

8 No. ~ - Taking Instructions to Jury Room

9 Nos. 48 & 54 - Juvenile Court Proceedings .

10 No. 44 - Suit in Comnon Name

II No. as - Escheat - Wbe.t Law Governs

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Priority

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Minutes - Regular Meeting August :as and 29, 1959

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No. 40 - Notice of Alibi

No. 42 - Good Faith IIIq>raver

It was also agreed that the following studies recamnended

in Memorandum No. 3-B to be presented to the 1961 Legislature by the

COIIIIDission should be put over to the 1963 Session:

Study No. 29 - Post-Conviction Sanity Hearings

Study No. 43 - Separate Trial on Issue of Insanity

Study No. 46 - Arson

Study No. 49 - Unlicensed Contractors

Study No. 51 - Right of Wife to Sue for Support After ElK: Parte Divorce

During the discussion Mr. Bradley stated that the

COIIIIIIission might want to consider introducing sane of its non­

controversial studies during the 1960 or 1962 Session. No decision

was reached on this matter.

The COIIIIDission then considered Memorandum No. 3 relating

to the request tor authorization of new studies. After the matter

was discussed a motion was made by Mr. Gustafson, seconded by Senator

Cobey, and adopted that the Commission will not introduce at the 1960

Session of the Legislature a concurrent resolution requesting

additional topics, but will introduce a concurrent resolution

requesting authorization to continue the studies in progress. Mr. Stanton

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expressed opposition to the motion.

should request three or four topics.

Minutes - Regular Meeting August 28 and 29, 1959

He stated that the Commission

The Commission then considered the request of Ml-. Bidd1ck

of the Assembly Interim Judiciary Comm1ttee. Atter the matter

was discussed a motion was made by Mr. Gustafson, seconded by

Mr. Babbage, and unanimously adopted to direct the Executive Secretary

to send to Mr. Biddick (1) the suggestions and reports on the

suggestions included in Appendices I, II and IV (holding back any

suggestion that the Comm1ss1on ~ want to undertake as a study at

a future date); (2) a list of the Comm1ssion's current studies; and

(3) a request that Mr. Bidd1ck advise the Commission which of the

COIIIIII1ssion suggestions he selects for stud;r by the AssemblJ' Interim

Judiciary Comm1ttee.

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- -. Minutes - Regu1.ar Meeting August 2B and 29, ~959

C. Argument 1n Favor of A.C.A. No. ~6 - C~s.im Statute

Amendment: The Commission considered Memorandum No. ~ and proposed.

draft of argument 1n favor ot Proposition No. ___ (8/10/59)

sulrn1tted by Mr. Gustafson. (A copy ot each of these items is attached

hereto.) After the u:e:bter wu discussed a motion was made by Mr. Babbage,

seconded by Senator Cobey, and nnanimously adopted to approve the

proposed draft of the argument in ta:vor ot the constitutional amendment

and send it to Mr. Bradley, the argument to be revised by Mr. Bndley

as he sees tit.

During the discussion Mr. stanton raised the question whether

it would be possible tor the ComID1ssion to be aitvised of the argument

presented against the constitut:l.onal amendment. Mr. lQ.eps stated that

the Secretary ot state would be the proper source to contact.

Mr. Stanton then reported on his conversation with Mr. Garrett

Elmore of the state Bar who informed h1ln that it is not necessary for

the Commission to submit a tormal resolution regarding A.C.A. No. 16 to

the Conference ot the State Bar. A ~etter to the llos.rd of Governors

ot the State Bar is sufficient.

Mr. Stanton then stated that he felt that it would be

appropriate tor the Ccmnission to encourage the pubJ.ication of an

article in the State Bar Journal relating to the claimS ~egislation

enacted on recamnendation of the Comm1ssion by the ~959 SeSSion if the

diSCUSSion on the clsims legislation is not adequately covered by the

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- -MLnutes - Regular Meeting August as and 29, 1959

Continuing Education of the Bar in its sUl!lllla.X'Y in the State Bar

Journal. on the 1959 legislation. Mter the matter was discussed it

was agreed that Mr. McDonough should. be encouraged to write the

article if his time permits and if the matter is not adequately

discussed in the Bar Journal..

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Minutes - Regular Meeting August :28 and 29, 1959

D. BoUDd Volume 2 - Legislative History of Measures

Introduced in 1959 Session on Recommendation of Ccmm1seion: The

Commission considered Memorandum No. 8 (8/19/59) and a Summary of the

Legislative History of the Commission Measures introduced in the 1959

Session prepared by Mr. McDollough. (A copy of each of these items is

attached hereto.) After the matter was discussed the following was

agreed upon:

(1) That a brief summary of the history, without the

substance of the amendments, should be included in the Commission's

19&> Annual Report.

(2) That the sequence of bills discussed should be as

follows: (a) the defeated 1957 bills which were reintroduced in the

1959 Session should precede the discussion of the new bills and (b)

the discussion of the 1959 bills should be in the order in which the

studies are boUDd in Volume 2.

(3) The Ebtecutive Secretary raised the question whether

there should be references made as to the sources of changes made in

the bills by the Commission. After the matter was discussed the

following action was taken:

A motion was made by Mr. Thurman, seconded by Mr. Dieden

and unslIimously adopted that the history include a statement of the

source of the amendment where the information is of significance and

can be stated accurately, but otherwise to make no reference to the

source.

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Minutes - Regular Meeting August 28 and 29, 1.959

A motion was then made by Senator Cobey, seconded by

Mr. Babbage and unanimously adopted that the history show where the

amendment was made, i.e., either in the Assembly or Senate.

A motion was then made by Senator Cobey, seconded by

Mr. Gustafson and unanimously ad~ed that the history inc1.ude a

statement as to where (committee or floor action) the bill vas defeated.

(4) A motion was then made by Mr. Bradley, seconded by

Senator Cobey, and unanimously adopted to authorize the Chairman and

the EKecutive Secretary to put the History of the Legislative Measures

Introduced in the 1.959 Session in final. form.

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Minutes - Regular Meeting August ~ and 29, 1959

E. Attendance at National Legislative Conf'erence: The

Commission considered Memorandum No. 2 (8/19/59) (a copy of which is

attached hereto). Ai'ter the matter was discussed a motion was made by

Mr. Thurman, seconded by Mr. BradJ.ey, and unanimously adopted that

the Executive Secretary be authorized to attend the Twelfth Annual

Meeting of the National Legislative Conf'erence held in Denver on

October 7-9, 1959, as the representative of the Commission.

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F. Miscellaneous Matters:

Minutes - Regular Meeting August 28 and 29, 1959

(1) Stanford Contract. The EKecutive Secretary raised

the question whether the Commission should make a research contract

with Stanford University, using :funds in the 1959-60 Bud8et. that will,

otherWise remain unexpended. He reported that if the Assistant

EKecutive Secretary is going to work substantially full time on the

arbitration study, it will be necessary to have Stanford do research

work for the Commission during the current fiscal year. Atter the

matter was discussed it was agreed that the EKecutive Secretary should

discuss the matter with the Department of Finance.

(2) Open Meeting: The EKecutive Secretary raised the

question whether the Commission should continue its policy of holdiog

an open meeting during the State Bar Convention for the purpose of

receiving suggestions and comments from members of the bench and

bar. After the matter was discussed it was agreed not to set aside

time for an open meeting during this year I s State Bar Convention in

September.

(3) Future Meetings: It was agreed that inasmuch as the

Commission has a heavy agenda it should hold a three-day meetiog in

September; the date for the third day (Wednesday, September 23 or

saturday, September 26) to depend on a poll of the members.

The Commission then approved the following places and dates

for future meetiogs;

October 23 and 24 - Los Angeles

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Minutes - Regular Meeting August ~ and 29, 1959

Novenber 27 and ~ - San Francisco (10:00 a.m. Friday)

December 18 and 19 - Palm SpringS (pending

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further information re transportation to Palm Springs)

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Minutes - Regular Meeting August 28 and 29, 1959

II. CURRENT STUDIES

A. study No. 32 - Arbitration: The Commission bad before

it Memorandum No.9 (8/19/59); a memorandum, OUtline - Arbitration

study, and the correspondence of the Executive Secretary (dated

8/5/59) and !ob:'. Sam Kagel (dated 8/12/59) relating to an earlier

discussion of Mr. Kagel, the Cha1rma.n, Executive Secretary and !ob:'.

McDonough. (A copy of each of these items is attached hereto.) The

Chairman reported that he, the Executive Secretary and Mr. McDonough

met with Mr. Kagel to discuss what arrangement could be made to

complete the arbitration study. He stated that Mr. Kagel was still

interested in \.Uld.ertaking the study on arbitration as outlined by

the Caumission and that Mr. Kagel stated that he would be able to

complete it by the end of the year. The Commission again discussed

generally how it should proceed to obtain adequate research on this

subject in view of Mr. Kagel's desire to continue with the study and

his past performance. During the discussion Mr. Babbage proposed

that this could be done by letting Mr. Kagel undertake to do the

study and by asking Mr. Harvey to continue the study undertaken by

Mr. Stephens and to also check on the work of Mr. Kagel which would be

su1:mitted periodically. After the matter was discussed the following

was agreed upon:

A motion was made by Mr. Babbage, seconded by Senator Cobey,

and adopted to accept Mr. Kagel's offer to \.Uld.ertake to do the study as

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-Minutes - Regular Meeting August 28 and 29, 1959

set out in the proposed outline but with the additional requirement

that Mr. Kagel be asked to submit his study in insta.lJJnents, the

last installment to be submitted by the end. of the year. Mr. Dieden

expressed opposition to the motion. Mr. Dieden stated that in view of

the past performance of Mr. Kagel the COlDIIIission should continue the

study without Mr. Kagel. A motion was then made by Mr. lla.bbage,

seconded by Mr. lla.lthis, and 1manirnously adopted to direct the staff'

to continue the study initiated by Mr. Stephens and to review the

work su1:m1tted by Mr. Kagel.

The COlDIIIission then considered what approach should be taken

by the COIIIIIission in car:ryi.ng forward the arbitration study. Mr. Stanton

suggested that the Commission should direct its considera.tion toward

various sections of the Uniform Arbitration Act. After the matter was

discussed it vas agreed that the Staff' should review the whole matter

and present its recommenda.tion with regard to what it concludes would

be the better approach.

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Minutes - Regular Meeting August 28 and 29, 1959

B. study lTo. 34(1) - Unitorm Rules of Evidence: The

Commission had before it the following memorandums prepared by

Professor Chadbourn: Rule 26 (Lawyer-Client Privilege), Rule zr (physician-Patient Privilege), Rule 28 (Marital Privilege for Confidential

COIlIIIlunications), Rules29-36 and Rules 37-40 (All relating to privilege.).

1. Rule 26 - Lawyer-Client Privilege. The Commission

first considered Uniform Rule 26 relating to the Lawyer-Client Privilege.

After the matter was discussed the following action \l8.S taken:

A motion was made by Mr. Thurmsn and seconded by Senator

Cobey to approve the adoption of the principle of that portion of

Rule 26 which provides that the privilege to prevent the disclosure

of a confidential communication between a client and attorney is the

privilege of the client alone insofar as the attorney and the attorney's

secretary and clerk are concerned. The motion carried:

A:ye: Cobey, Dieden, Gustafson, Matthews, Stanton, Tlrurman.

No: Babbage, Balthis.

Pass: Bradley.

A motion was made by Mr. Bradley and seconded by Mr. Dieden

to approve that pertion of Rule 26 which defines lawyer to mean a

person authorized, or "reasonably believed by the client to be authorized"

to practice law. The motion carried:

Aye: Balthis, Bradley, Dieden, Stanton, Thurman.

No: Cobey, Gustafson, Matthews.

Not Present: Eabbage

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-. Minutes - Regular Meeting August 2B and 29, 1959

A motion was made by Mr. Thurman and seconded. by Senator

Cobey to approve the adoption of the language "Who himself consults

or" to be inserted. in Rule 26(3)(a) after the words "includes an

incOII\Petent." The motion carried.:

Aye: Babbage, Balthis, Bradley, Cobey, Dieden, Gustafson

Matthews, Stanton, Thurman.

No: None.

A motion was made by Senator Cobey and seconded. by

Mr. Babbage to limit exception (a) of Rule 26(2) to the c~ssion tyL-

of or plan to commit "a crillle ~ civil fraud.. " The motion carried.:

Aye: Babbage, llalthis, Bradley, Cobey, Died.en, Gustafson, Matthews, Stanton, Thurman.

No: None.

[Comment: It was agreed tbat this exception should not be broadened

as proposed in U.R.E. Rule 26(2)(a) to include the commission of or

the plan to commit· a tort, but to retain the present California law.]

Mr. Gustafson then raised the question of the prOVision in

Rule 26(2)(a) which requires that the judge must find that sufficient

evidence aside from the communication has been introduced. before the

introduction of evidence that legal service was sought or obtained to

enable or aid the client to commit or plan to commit a crime or Civil

fraud •. After the matter was discussed a motion was made by. !-fr •.

Gustafson and seconded..by Mr. Balthis to delete the requirement· from

Rule 26(2)(a) that the judge find sufficient evidence aside fr~ the

crnnm'ln1 cat1on. Rule 26(~)(a) as revised. would read as follows:

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-Minutes - Regular Meeting August 28 and 2), 1959

(a) to a communication if' the legal service was sought or obtained in order to enable or aid the client to commit or plan to commit a crime or civil fraud, or • • •

The motion did not carry:

Aye: Be.lthis, Gustaf'son, Stanton.

No: Ba.bbage, Bradley, Cobey, Dieden, Matthews.

Pass: Thurman.

A motion was then made by Mr. Bradley and seconded by

Mr. Thurman to approve the adoption of Rule a6(2)(a) as revised to

substitute the words "civil fraud" for the words "or a tort." The

motion carried:

Aye: Balthis, Bradley, Cobey, Dieden, Matthews, Thurman.

No : Ba.bbage, Gustaf'son, St;am;on.

[Comment: It was agreed that there is merit to the objection raised

by Mr. Gust&rson with regard. to the requirement in Rule a6 of

additional evidence aside fran the communication and perhaps this

requirement should be eliminated if same s&reguard. could be provided,

e.g., if the questions relating to the cOlllllUllication were asked

outside the presence of the jury. Professor Chadbourn was requested

to re-examine the matter and submit hi~~{t7the Commission.]

A motion was made by Senator Cobey and seconded by Mr. Bradley

to approve that portion of Rule a6(2)(b) which covers parties "Who

claim through the client by inter vivos transaction.

The motion carried:

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MinlItes - Regular Meeting August 28 and 29, 1959

Aye: Babbage, Balthis, Bradley, Cobey, Dieden, Gustafson,

Stanton, Thurman.

No: None.

Not Present: Matthews.

A motion was made by Mr. Balthis and seconded by Mr. Babbage

to approve the elimination of the eavesdropper exception as proposed

by Rule 26(l)(c)(i}(ii). The motion carried:

Aye: Babbage, Balthis, Bradley, Cobey, Dieden, Matthews,

Stanton, Thurman.

No: Gustafson.

A motion was made by Mr. Dieden and seconded by Mr. Gustafson

to clarify the l.aDguase of Rule 26(l)(b) to clearly provide that the

client may prevent a stenographer of his lawyer fram making disclosures.

Rule 26(l)(b) as revised reads as follows:

(b) to prevent his lawyer or the lawyer's representative,

associate, or emplqyee fram disclosing it, • • •

The motion carried:

Aye: lle.bbage, Balthis, Cobey, Dieden, Gustafson, Matthews,

Stanton, Thurman.

No: None.

Not Present: Bradley.

The Commission then considered the second sentence of Rule

26(1) which appears to vest the lawyer with the privilege in his own

right. After the matter was discussed a motion was made by Senator

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Minutes - Regular Maeting August 29 and 29, ~959

Cobey and seconded by Mr. Thurman to approve in princip~e the

following revision of the second sentence of RuJ.e 26(~):

The privilege may be claimed by the following persons (a) tbe client, when he is campetent (b) a guardian of a cl.iel<t who is incompetent; (c) the personal. representative of a deceased client; (d) Brrif person authorized by such competent client, such guardian or such pers~ representative to cla1m the privilege.

The motion carried:

Aye: Babbase, Bradley, Cobey, Dieden, Gustafson, Matthews,

Stanton, Thurman.

No: None.

Not Present: l38J.th1Il.

(comment: It was agreed that the above revision wo~d remove the

m1s~ea.ding implication that the attorney is vested with the right to

c~aim the privilege on his own behaU.]

A motion was then made by Mt-. Stanton and seconded by

Mt-. Dieden to approve the add! tion of the following new subsection to

R~e 26(~):

(e) the awyer to whom communication was made providing client is ~iying and has not waived the privile~.

The motion carried:

Aye: Babbase, Cobey, Dieden, Gustafson, Matthews, Stanton,

Thurman.

No: None.

Pass: Bradley •

Not Present: Balthis.

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Minutes - Regular Meeting August 28 and. 29, 1959

[Comment: It was agreed that there should be a provision giving the

attorney a qualified privilege on behalf of his client.]

During the discussion of the first sentence of Rule 26(1)

Mr. Gustafson pointed out that the words "are privileged" are meaningless

if the privilege is to be vested in the client. After the matter was

discussed a motion vas made by Mr. Gustafson and seconded by Mr. Dieden

to revise the first sentence of Rule 26(1) to read substantialJ.y as

follows:

(1) General Rule. Subject to Rule 37 and. except as otherwise provided by Paragraph 2 of this rule, a client has a privilege as to a communication found. by the judge to have been made between a lawyer and his client in the course of that relationship and. in professional confidence:

The motion carried:

kye: Babbage, l3radley, Cobey, Dieden, Gustafson, Matthews,

stanton, Thurman.

No: None.

Not Present: Balthis.

It vas agreed that final approval of Rule 26 be deferred to

the next meeting.

2. Rule' 27 - Physician-Patient Privilege. The Commission

then considered Uniform Rule 27 relating to the Physician-Patient

privilege. After the matter was discussed the following action was

taken:

A motion was made by Mr. Thurman and seconded by Mr. Dieden

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-Minutes - Regular Meeting August 2.8 and 29, 1959

to approve in principle that portion of Rule 27(l)(d) which defines

"physician" as a person the patient reasonably believed to be

authorized to practice medicine. The motion carried:

Aye: Babbage, Bradle;r, Cobe;r, Dieden, Gustafson, Matthews,

stanton, Thurman.

No: None.

Not Present: Balthis.

A motion was made b;r Senator Cobe;r and seconded b;r Ml'. Babbage

to approve that portion of Rule 27 which extends the privUege to the

patient to prevent a physician's nurse, stenographer or clerk from

test:L1'y1.ng. The motion carried:

Aye: Babbage, Bradley, Cobey, Dieden, Gustafson, Matthews,

stanton, Thurman.

No: None.

Not Present: BalthiB

A motion was made b;r Senator Cobey and seconded b;r Mr. Dieden

to approve in principle that portion of Rule 27(l)(c) which provides

that the posthumous privilege is vested in deceased patient's personal

representative who in all cases can vaive the privilege subject to the

exception that in a wrongful death action an;r person now authorized under

the California law in such cases ma;r consent to waive the privilege. The

motion carried:

Aye: Babbage, Bradley, Cobey, Dieden, Gustafson, Matthews,

Thurman.

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No: Stanton.

Not Present: Bal this.

Minutes - Regular teeting August 28 and 29, 1959

A motion vas made by Senator Cobey and seconded by Mt-. Dieden

to approve in prinCiple that portion of Rule 27(3)(a) which provides

that the privilege would be inapplicable in proceedings to pJ.ace the

patient under guardianship or to remove him therefrom. The motion

carried:

Aye: llabbage, Bradl.ey, Cobey, Dieden, Gustafson, Matthews,

Stanton, Thurman.

No: None.

Not Present: llalthis.

A motion was made by Senator Cobey and seconded by Mr. Thurman

to approve in principJ.e that portion of Rule 27(3)(a) which makes the

privilege inapplicable in an action to recover damages on account of

conduct of the patient which constitutes a criminal offense other than

a misdemeanor, i.e., the privilege is inapplicable under Rule 27(3)(a)

only if the conduct amounts to a felony. The motion carried:

Aye: llabbege, Bradley, Cobey, Matthews, StBllton, Thurman.

No: Dieden, Gustafson.

Not Present: Balthis.

A motion vas made by Senator Cobey and seconded by Mr. Dieden

to revise that portion of Rule 27(3)(c) to make the privilege

inapplicable u;pon an issue between parties claiming by inter vivos

transaction from a deceased patient. Rule 27(3)(c) as revised reads

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as follows:

Minutes - Regular Meeting August 28 and 29, 1959

(c) upon an issue between parties claiming by testate or intestate succession 2!. £l inter ~ transaction from a deceased patient.

The motion carried:

Aye: Babbage, Bradley, Cobey, D1 eden , Gustafson, Matthews,

Stanton, Thurman.

No: None.

Not Present: Bal this.

A motion was made by Senator Cobey and seconded by Mr. Thurman

to apprcwe Rule 27 (4) as revised to read as follows:

(4) There is no privilege under this rule in an action in which the condition of the patient is an element or factor of the claim or counter claim, cross-complaint or affirmative defense of the patient. • • •

The motion carried:

Aye: Babbage, Bradley, Cobey, Dieden, Matthews, stanton,

Thurman.

No: Gustafson.

Not Present: Balthis.

A motion was made by Senator Cobey and seconded by Mr. Dieden

to apprcwe Rule 27(5) as revised to prcwide that the privilege is

inapplicable as to information of which the physician is required to

make an official report unless the statute, ordinance or other regulation

requiring the report or record specifically prcwides that the information

shall not be disclosed. The motion carried:

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Aye: Babbage, Bradley, Cobey, Dieden, Gustafson, Matthews

Stanton, Thurman.

No: None.

Not Present: Ba.lthis.

A motion was made by Mr. Be.bbage and seconded by Mr. Bradley

to approve that portion of Rule 27(6) as revised to provide that the

privilege is inapplicable 'Where the judge finds that the services of

the physician were sought or obtained to enable or aid anyone to commit

or to plan to commit a crime or fraud or to escape detection or

apprehension after the commission of the crime or fraud. The motion did

not carry:

Aye: llabbage, Bradley, Matthews, Stanton.

No: Cobey, Dieden, Gustafson, Thurman.

Not Present: Ba.lthis.

A motion was then made by Senator Cobey and seconded by

Mr. Dieden to approve that portion of Rule 27(6) which provides that the

privilege is inapplicable where the judge finds that the services of

the physician 'Were sought or obtained to enable or aid anyone to

commit or to plan to commit a crime or a tort or to escape detection or

apprehension after the commission of the crime or tort. The motion

carried:

Aye: Bradley, Cobey, Dieden, Gustafson, Matthews, Thurman.

No: Be.bbage, Stanton.

Not Present: Ba.lthis.

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A motion was made by Mr. Matthews and seconded by Senator

tobey to approve the principle that a patient does not have the right

to claim the privilege to prevent IUl eavesdropper's testimony of a

confidential communication made between himself and his pb;ysician. The

motion carried:

Aye: Babbage, Bradley, Cobey, Gustafson, Matthews, Stanton,

Thurman.

No: Dieden.

Not Present: Bal this.

A motion was made by Mr. Dieden and seconded by Mr. Matthews

to delete the words "of the person" frem Rule 27(l)(c); as reVised,

RuJ.e 27(l)(c) reads as follows:

(c) "holder of the privUege" means the patient while alive and not under guardianShip or the guardian of an incompetent patient.

The motion carried:

Aye: Babbage, Bradley, Cobey, Dieden, Gustafson, Matthews,

Thurman.

No: StlUlton.

Not Present: Balthis.

A motion was made by Mr. Gustafson and seconded by Mr. Stanton

to provide in RuJ.e 27(2) that a person has the privUege in a civU

action but does not have the privilege in a prosecution for a

misdemeanor, i.e., the phrase "or in a prosecution for a misde!llE!8Dor"

shouJ.d be deleted fram Rule 27(2). The motion carried:

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Aye; Babbage, Bradley, Cobey, Dieden, Gustafson, Matthews,

Stanton, Thurman.

No: llone.

Not Present: Ba.lthis.

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C. study No. 40 - Notice of Alibi: The Commission considered

Memorandum No. 5 (8/10/59) and the research study prepared by

Mr. John J. Wilson. (A copy of each of these items is attached hereto.)

After the ma·~ter was discussed, a motion was made by Mr. Gustafson,

seconded by Mr. Balthis, and unanimously adopted to authorize the

Elcecutive Secretary to pay Mr. Wilson for his study on Notice of Alibi.

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D. Study No. 42 - 'I"respassing Il!!Provers: The Commission

considered Memorandum No. 2 (7/8/59) and a memorandum on the Good Faith

or "Trespassing" Improver (8/27/59) prepared by Mr. Stanton and

distributed d the meeting. (A copy of each of these items is attached

hereto.) M"t"" Sta.'lton stated that his proposed draft statute is in a form

consistent with the law presently applicable to accessions to personal

property and, although both the Relief-Oriented Statute and his proposed

draft are inte:t'eeted in a just result, his draft prescribes the respective

rights of the parties without the necessity of litigation to determine

the relief to be granted. During the discussion the Elrecutive Secretary

reported that Professor Merryman is of the opinion that a statute

designed to cover every possible situation is "fraught with danger."

After the matter was discussed a motion was made by Mr. Dieden and

seconded by Mr. Balthis to adopt the modified version of the "Relief­

Oriented Statute" proposed in Me!:Iorandum No. 2 (7/8/59). The motion

carried:

Aye: Babbage, Balthis, Bradley, Cobey, Dieden, Gustafson,

Matthews, Thurman.

No: stanton.

The Commission then considered the following sections of the

modified version of the Relief-Oriented Statute:

1. Section 2. The Commission discussed whether Section 2 of

the proposed draft statute should require that the trespasser who improves

the property of another should have "actual knowledge" or "constructive

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knowledge" tbat the property is owned by another. After the matter

was discussed a motion was then made by Mr. Thurman, seconded by

Mr. Balthis, and adopted to approve in pril:iciple the requirement that

the draft statute should provide for the trespasser who ilr<Proves land

without actual knowledge that the property is owned by another or without

knowledge of any facts sufficient to put a reasonable man on notice

before reJ.ief can be granted to him. Mr. stanton expressed opposition

to the motion, stating that the good-faith test should be used rather

than the requirement of actual knowled8e.

A motion was made by Mr. Gustafson, seconded by Mr. Balthis

ana lmSDimously adopted to approve in principle the requirement that

the draft statute should provide that the owner must have actual

knowledge of the trespasser improving his land before he is subject to

any penalty.

2. Section 4. The Commission then discussed whether damages

or forfeiture should be allowed against an owner who having actual

knowledge that the trespasser is ilr<Proving the land fails to warn him.

After the matter was discussed a motion vas made by Mr. Balthis,

seconded by Mr. Matthews, BJld unBJlimously adopted to provide that the

court sball decree only such relief to protect the trespasser against

loss but otherwise, insofar as possible, avoid enriching him at the

expense of the owner where the owner does bave actual knowledge of the

trespasser iqlroving his land but fails to warn him.

3. Section 5. The Commission then discussed Section 5

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concerning the bad faith of both the trespasser and the owner. After

the matter was discussed a motion was made by Mr. Stanton and seconded

by Mr. Gustafson to delete Section 5 which prescribes the remedies

where both persons act in bad faith... It was agreed that this situation

would then be covered by the general section indicating the types of

relief that ma;y be granted by the court.

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E. Study No. 43 - Separate Trial on Issue of Insanity: The

Commission had before it Memorandum No.7 (8/10/59) and the correspondence

(dated 8/5/59 and 8/6/59) of the Executive Secretary and Professor

Louisell relating to his request for the permission at the Commission to

publish his study in the California Law Review. (A cC1f!Y of each of these

items is attached hereto.) The Commission reconsidered its policy

established at the June 1 and 2, 1956, meeting that its research

consultants should not be permitted to publish their work for the

Commission as Law Review articles prior to publication of the reports

of the Commission. After the matter was discussed a motion was made

by Mr. Dieden, seconded by Mr. l!althis, and unanimously adopted to direct

the Executive Secretary to write to Professor Loutsell that the

Commission's policy is not to permit the research consultant to publish

any material prepared for the Commission untU after the Commission has

taken final action on the matter.

The Executive Secretary then raised the question whether the

letters Professor Louisell has received in response to his inquiry

relative to the bifurcated trial should be included as appendices in

the printed pubJ.ication of this study. After the matter was discussed

it was agreed that the correspondence as such should not be printed.

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F. Study No. 48 - Right to Counsel in Juvenile Court

Proceediog: The Commission had before it Memorandum No.6 (8/10/59);

Memorandum NO.7 (7/23/59); a letter (dated 8/3/59) fran Professor

Arthur H. Sherry; and the draft of the Reccmnendation of the Commission

relatiog to the Right to Counsel in Juvenile Court Proceedings (dated

7/23/59) prepared by Mr. McDonough. (A copy of each of these items is

attached hereto.)

The COIIIDission first considered the draft recommendation

relating to the right to counsel in juvenile court proceedings. JAn-ing

the discussion Mr. Stanton pointed out that the Recommendation should

be consistent vhere it refers to "persons," "minors" and "juveniles"

and suggests using ''minor'' throught the Recommendation. Senator Cobey

suggested that a footnote should be inserted. in the Recarmendation

defining "juvenile" if the term "juvenile" is used. After the matter

was discussed a motion vas made by Mr. Be.bbage, seconded by Mr. Balthis,

and adopted to authorize the staff to make the appropriate cha.cges

in the Recommendation using the word "juvenile" vhere practical. Mr.

Stanton voted "No."

The COIIIDission then agreed that the following changes should

be made in the Recommendation:

1. Page 1. Reference to the "Welfare and Institutions Code"

should be substituted for the reference to "the Juvenile Court Lav"

wherever appropriate.

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The last sentence of paragraph 1 should be revised to rel;l.d

"such an order may> among other things, deprive the person's parents

of custody over him and commit him to various persons or institutions

tor care. 11

2. Page 2. The word "rather" should be deleted from the first

sentence of the first paragraph.

The third sentence of the first paragraph should be reworded

by the Executive Secretary to improve its form.

It was agreed that the staff should ascertain whether the word

"court" should be inserted between the phrase "juvenile proceedings" in

the first sentence of the second paragraph.

3. Page 3. The phrase "otherwise adverse to his interest"

should be deleted from the first sentence of the first paragraph of

Page 3. During the discussion of the first paragraph of Page 3

Mr. Gustafson raised the question of the substantive accuracy of this

paragraph. It was agreed that the staff should look into this matter

and report its findings.

4. Page 4. It was agreed that the first paragraph following

the heading "Proposed Legislation" should be revised to incorporate

"a statute should be enacted," thus el1m1nating the need to repeat this

phrase in the subsequent three subparagraphs.

It was agreed that subparagraph 1 should be revised to rel;l.d

as follows:

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l.. A person who is the subject of a juvenile court proceeding under Section 700 of the Wel.fare and Institutions Code has the right to be represented by counsel.. The Commission does not believe that permitting counsel. to participate in juvenil.e court proceedings will impair their inf'ormaJ. nature and turn what is now essentially a beneficent inquiry pursued sol.ely in the juvenile's interest into an adversary proceeding in which much of the val.ue of the juvenile court Will be l.ost. There is no reason wQy the participation of counsel. shoul.d introduce so disruptive a note. Proceedings may continue to be informal. and counsel. required to conduct tbemsel.ves accordingly.

It was agreed to defer further consideration of the Recommendation

to the next meeting.

Respectful.ly submitted,

John H. DeMoully Executive Secretary